Part 4: Consulting Experts – Fact or Fiction?

New Expert Evidence Guidelines – Our Four Part Series

"Hired gun”, “inappropriate communications”, “contamination” and "hot tubs" are just some of the terms you'll find in the Federal Court of Australia's (FCA) greatly expanded expert evidence practice note (GPN-EXPT) released in late 2016.

In a series of four bite-sized parts , we explore how you can get the best out of GPN-EXPT. Part 1 looked at the guidelines relating to the instruction of expert witnesses, Part 2 covered conference of experts and joint reports and Part 3 examined concurrent evidence or “Hot tubbing”.

In the final part of the series, we address Paragraph 3.2 of GPN-EXPT regarding consulting experts, which reads:

“A party or legal representative should be cautious not to have inappropriate communications when retaining or instructing an independent expert, or assisting an independent expert in the preparation of his or her evidence. However, it is important to note that there is no principle of law or practice and there is nothing in this practice note that obliges a party to embark on the costly task of engaging a "consulting expert" in order to avoid "contamination" of the expert who will give evidence. Indeed, the Court would generally discourage such costly duplication."

Consulting experts can be engaged on any type of matter. However, the role of the consulting expert, as described above, has been the subject of much debate. Here we separate fact from fiction around the guidance in Paragraph 3.2. of GPN-EXPT.

Fact or Fiction?

Engaging a consulting expert is a costly exercise

Fiction!

In our experience, consulting experts, when used in the right way, can save clients’ money by helping the legal team or independent expert focus on the key issues in dispute.

Fact or Fiction?

A commonly held view is that consulting experts duplicate the tasks of the independent experts. This is not always the case.

Consulting experts are often engaged to provide assistance "inside the tent" such as “testing” an issue or helping to inform the legal team's strategy.

Fact or Fiction?

Engaging a consulting expert will avoid "contamination" of the independent expert

Fact!

A good independent expert will be able to maintain their independence, whilst maintaining sufficient and appropriate communication.

However, there are certain issues that may not be appropriate for discussion with an independent expert, and there still could also be a perception of contamination in some cases.

Fact or Fiction?

Consulting experts are often engaged in conjunction with independent experts

Fiction!

In our experience, independent experts are often engaged without requiring consulting experts.

Conversely, consulting experts can be retained in many roles without an independent expert, as described in the Accounting Professional and Ethical Standard 215:

“Consulting Expert Service means a Professional Service provided in the context of Proceedings, other than an Expert Witness Service, a Lay Witness Service or an Investigation Service. It includes acting as an adviser, an arbitrator, mediator, member of a professional tribunal, expert in an expert determination, referee or in a similar role.”

Fact or Fiction?

Paragraph 3.2 discourages the use of consulting experts

Fiction!

We don’t think it is discouraging the use of consulting experts per se. However, we do think it discourages the use of a consulting expert "just for the sake of it", resulting in duplication without added value.

We also think it confirms that you can have appropriate communication with an independent expert without “contamination”. A good independent expert will be well-versed in maintaining good communication, as well as their independence.

Read more of our commentary on the FCA’s new expert evidence guidelines: